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Gay rights

European Court of Justice advised to urge Romania to give residency to gay man's partner

A legal advisor to the ECJ said in an opinion that under the EU's freedom of movement directive, the term "spouse" includes same-sex partners. This would apply even if the EU member state does not recognize gay marriage.

The legal advisor to the European Union's top court issued an advisory ruling on Thursday, reccomending that Romania must give residency to the same-sex partner of one of its citizens, despite Romania not recognizing same-sex marriage.

The legal opinion comes after same-sex couple Relu Coman, a Romanian national, and his American partner Robert Hamilton requested for Romanian authorities to issue the documents needed to allow Coman to work and reside permanently in Romania with Hamilton in December 2012.

The request was based on the directive on the exercise of freedom of movement, which permits the spouse of an EU citizen to join his or her partner in the member state where the EU citizen resides.

But Romanian authorities refused to grant Hamilton residency, on the grounds that he could not be classified as the "spouse" of an EU citizen in Romania because the country does not recognize same-sex marriage.

Countries that have legalized same-sex marriage

2001, The Netherlands

The Netherlands was the first country in the world to permit same-sex marriages after the Dutch parliament voted for legalization in 2000. The mayor of Amsterdam, Job Cohen, wedded the first four same-sex couples at midnight on April 1, 2001 when the legislation came into effect. The new law also allowed same-sex couples to adopt children.

Countries that have legalized same-sex marriage

2003, Belgium

The Netherlands' neighbor, Belgium, followed the Dutch lead and legalized same-sex marriage two years later. The law gave same-sex partners many of the rights of their heterosexual counterparts. But unlike the Dutch, the Belgians did not initially allow same-sex couples to adopt children. The Belgian parliament passed a bill granting them that right three years later.

Countries that have legalized same-sex marriage

2010, Argentina

Argentina became the first Latin American country to legalize same-sex marriages when its Senate voted 33 to 27 in favor of it in July 2010. Argentina thereby became the tenth country in the world to permit gay and lesbian marriages. The South American country was not the only one to do so in 2010. Earlier in the year, Portugal and Iceland also passed same-sex marriage legislation.

Countries that have legalized same-sex marriage

2012, Denmark

Denmark's parliament overwhelmingly voted in favor of legalization in June 2012. The small Scandinavian country had made headlines before when it was the first country in the world to recognize civil partnerships for gay and lesbian couples in 1989. Same-sex couples had also enjoyed the right to adopt children since 2009.

Countries that have legalized same-sex marriage

2013, New Zealand

New Zealand became the 15th country worldwide and the first Asia-Pacific country to allow gay and lesbian marriages in 2013. The first couples were married on August 19. Lynley Bendall (left) and Ally Wanik (right) were among them when they exchanged vows on board an Air New Zealand flight from Queenstown to Auckland. France legalized same-sex marriage the same year.

Countries that have legalized same-sex marriage

2015, Ireland

Ireland made headlines in May 2015 when it became the first country in the world to legalize same-sex marriage through a referendum. Thousands of people celebrated in the streets of Dublin as the results came in showing almost two-thirds of voters opting for the measure.

Countries that have legalized same-sex marriage

2015, USA

The White House was alight in the colors of the rainbow flag on June 26, 2015. Earlier, the US Supreme Court ruled 5 to 4 that the constitution guaranteed marriage equality, a verdict that paved the way for same-sex couples to be married across the country. The decision came 12 years after the Supreme Court ruled that laws criminalizing gay sex were unconstitutional.

Countries that have legalized same-sex marriage

2017, Germany

Germany became the fifteenth European country to legalize gay and lesbian marriages in June 30, 2017. The bill passed by 393 to 226 in the Bundestag, with four abstentions. German Chancellor Angela Merkel voted against the bill, but paved the way for its passage when she said her party would be allowed to vote freely on the measure only days before the vote took place.

Countries that have legalized same-sex marriage

2017 - 2018, Australia

Following a postal survey which showed the majority of Australians were in favor of same-sex marriage, the country's parliament passed a law to legalize it in December 2017. As couples in Australia have to give authorities one month's notice of their nuptials, many of the first weddings took place just after midnight on January 9, 2018 - including that of Craig Burns and Luke Sullivan, pictured.

Author: Alexander Pearson

Coman and Hamilton appealed the authorities' decision at Romania's Constitutional Court, which then referred the issue to the Court of Justice, asking if Hamilton must be granted permanent residency in Romania based on his EU spouse having exercised his freedom of movement.

Generally accepted marriage definition 'can no longer be followed'

In Advocate General Melchior Wathelet's legal opinion on Thursday, he said the legal issue at the center of the dispute was not the legalization of same-sex marriage, but the free movement of EU citizens.

"While member states are free to provide for marriage between persons of the same sex in their domestic legal system or not, they must fulfil their obligations under the freedom of movement of EU citizens," the statement said.

Wathelet said that the directive on the exercise of free movement made no reference to member state law in determining the nature of the term "spouse."

He said that while the term "spouse" within the meaning of the directive refers to a marriage, it was neutral as to the sex of the persons in the marriage and indifferent to where the marriage took place.

"In the view of the general evolution of the societies of the member states of the EU in the last decade in the area of authorization of same-sex marriage, the case-law of the Court whereby ‘according to the definition generally accepted by the member states, the term marriage means a union between two persons of the opposite sex’ can no longer be followed," the statement said.